Friday, December 26, 2008

Sorry, Adam and Steve: If You Get Married, We Must Allow the Smith Triplets to Wed Each Other As Well!

Slippery slope arguments abound in same-sex marriage discourse. Opponents to same-sex marriage argue that if states legalize same-sex marriage, then nothing can stop them from legalizing a host of other relations, including incest, pedophilia, polygamy, or even bestiality. Ellen DeGeneres has a great comedy skit mocking the bestiality argument, in which she pretends to have breakfast with her mate -- a goat. When she reaches for the morning paper, she discovers, to her dismay, that her partner has eaten it. That is just about how seriously I take the slippery slope arguments myself.

The debate over the scheduled appearance of Rick Warren at Obama's inauguration has renewed debates over same-sex marriage, and slippery slope arguments have reemerged as a tool of its opponents. Warren argued that same-sex marriage was the moral equivalent of incest, polygamy, and pedophilia. Today, on Real Clear Politics, Mona Cheren of Creators Syndicate, Inc., defends Rick Warren by embracing slippery slope arguments as well. Cheren contends that:

Once you abandon the traditional definition of marriage to suit the feelings on an interest group, by what principle do you stop redefining marriage? Gays and lesbians argue that their same sex unions are loving, committed relationships. Fine. But there are, or could be, other loving, committed relationships involving more than two people. . . .

Once traditional marriage -- supported by centuries of civilization and the major Western religions -- is undermined in the name of love, there is no logical or principled reason to forbid polygamy, polyandry, or even incest. Gay activists recoil from incest. But on what grounds exactly? Suppose, after we formalize gay marriage, two 25-year-old sterile (to remove the health of offspring argument) twins wish to marry? Let's suppose they are loving and committed. What is the objection? That it offends custom and tradition? That it offends God? Isn't that just bigotry?

Cheren rejects the claim by many GLBT individuals that Warren's comments linking same-sex marriage with pedophilia are bigoted because, according to Cheren, no material distinctions between same-sex marriage and these other "undesired" relations exist. Although slippery slope arguments are wildly seductive, they fail in two important respects.

Unable to See the Difference Between Adam's Boyfriend, Mother and Pet Labrador RetrieverFirst, slippery slope arguments assume no logical distinction between the proposed change (here, recognizing same-sex marriage) and the parade of horribles that exist on the slope (incest, pedophilia, bestiality, etc.). But even if Cheren's mind is unable to comprehend a distinction between same-sex marriage and these other categories, this does not disprove the existence of a meaningful and workable distinction.

On many levels, the prohibition of same-sex marriage, incest, pedophilia, bestiality, and polygamy all relate to an amorphous notion of "morality." But this sweeping concept cannot serve as a logical principle for shaping legal rights, because it could validate the prohibition of virtually everything a majority of the public finds distasteful. For that reason, the Supreme Court has held that morality alone cannot sustain laws that discriminate or deny liberty.

Beyond morality, it is easy to imagine concrete reasons for banning pedophilia or bestiality, such as lack of consent. Adult consensual incest tends toward the "just morality" argument in many ways, although valid concerns about the health of offspring exist in this context. And even though morality arguments certainly shape opposition to polygamy, exploitation concerns exist in this setting as well that could provide a legitimate basis for regulation. So, while opponents to same-sex marriage operate under the assumption that gay Adam's prospective spouse Steve is indistinct from Adam's mom or his loving pet Labrador Retriever, this belief does not hold up to scrutiny -- absent some horrible prejudice about what gay people do in the bedroom.

Why Does Heterosexual Marriage Miss the Slope?A second problem with using slippery slope arguments to challenge same-sex marriage is that the users fail to demonstrate why heterosexual marriage does not place society on a dangerous slippery slope. In other words, the opponents of same-sex marriage do not show how opposite-sex marriage differs materially from same-sex marriage such that it does not lead to the feared parade of horribles. Instead, they simply assume that the heterosexual status quo is the only "safe" place for society, presumably because marriage has existed in this form for "centuries."

Once the state validates some relationships, however, it potentially opens the door to a host of competing claims for legal recognition (or at least tolerance) of other types of relationships. But heterosexual marriage could present an even greater risk that society "slides" down the slope in some contexts than same-sex marriage. For example, the vast majority of incest, pedophilia and polygamy cases involve heterosexual men exploiting younger females. Yet, this has not caused society to ban heterosexual marriage.

I do not believe that the frequency of heterosexual incest, polygamy and pedophilia, however, warrants the prohibition of heterosexual marriage, and the opponents of same-sex marriage clearly agree. Nevertheless, because incest, polygamy and pedophilia are much more closely connected to male heterosexuality, if any type of marital relationship implicates these social problems it is traditional heterosexual marriage, not same-sex marriage.

Are the Slippery Slope Proponents Disingenuous?Cheren and Warren argue that they are neither anti-gay nor bigots. Instead, they object to same-sex marriage purely on policy grounds. Other proponents of the slippery slope argument have made similar claims. But when these same people, like Warren, say that they embrace "civil unions" instead of marriage, this suggests that their objection to same-sex marriage arises out of a heterosexist desire to preserve marriage for heterosexuals rather than to prevent the eventual legalization of child rape and incest.

The same slippery slope arguments that Warren advances in the same-sex marriage context could apply to civil unions as well. If he and Cheren are correct, then same-sex civil unions could lead to demands for pedophilic, incestuous, and polygamous civil unions. The fact that the slippery slope claims vanish when opponents of same-sex marriage advocate the civil unions consolation prize probably means that their objections to same-sex marriage probably have very little (if anything at all) to do with principled policy. Instead, opponents of same-sex marriage merely want to preserve the status quo -- or "centuries" of tradition -- against changes engendered by decades of pro-gay and feminist advocacy. But a desire to preserve a discriminatory past cannot justify the continuation of discrimination. This argument holds whether or not we label same-sex marriage opponents as "bigots."

[Editors Note: I actually believe that the distribution of important social resources strictly around marriage needs serious questioning. If health care or death benefits, for example, are important social goods, why narrowly link them to romantic relationships? Despite my skepticism about the value of marriage as a tool to distribute social resources, I strongly believe that opposition to same-sex marriage violates equality norms; accordingly, I resist the opposition, despite my general skepticism about the value of marriage.]

2 comments:

An obvious problem with slippery-slope arguments is that they can be used equally well to oppose changing anything at all.

We can't free our slaves, because next thing you know, we'll have to "free" our domestic animals as well.

We can't extend the vote to women, because next thing you know, we'll have to give the vote to children too.

In fact, making any major change (such as legalizing gay marriage) will inevitably make other major changes seem somewhat more plausible or worthy of discussion. But it won't make them inevitable. They will have to be debated and decided on their own merits, as the original change was.

Hello, Infidel. Thanks for you commenting. I did not want to get into it, but there are tons of essays from people who do work in "formal logic" that debate the utility of "slippery slope" arguments. Your post, along with this entire thread, isolates the inherent problem: it's based on the assumption that no limiting principles exist to distinguish the desired "new" activity from other horribles that "everyone" presumably views as unacceptable. You could attack both assumptions - no distinction AND these other things are inherently bad.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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